During former President Obama’s eight years in office, his administration advanced a strong pro-union, pro-worker agenda. Although the federal government is shifting to a more business-friendly approach under President Trump, change is gradual and employers must remain aware of the recent enforcement priorities of the National Labor Relations Board (NLRB), which has been particularly critical of employee handbooks.
What is the NLRB?
- The main function of the NLRB is to enforce the National Labor Relations Act (NLRA), a cornerstone piece of legislation designed to safeguard wo rkers’ rights.
- One of the most important parts of the NLRA is Section 7, which guarantees employees the rights to unionize, bargain collectively, discuss their wages or employment conditions, and otherwise engage in concerted activity for the purpose of protecting their interests.
- Any employers that take actions that could be perceived as infringing on Section 7 rights risk being penalized by the NLRB.
What you need to know about employee handbooks
In 2015, the NLRB issued its “Report of the General Counsel Concerning Employment Rules,” which clarified the Board’s interpretation of protected activities and addressed newer issues, including those related to social media and the NLRB’s heightened focus on employee handbooks. The report highlighted several examples of handbook provisions—many of which seem innocuous—that the NLRB deemed illegal. For example:
- Prohibiting employees from talking about customers outside of work might be illegal.
- Confidentiality rules that prohibit employees from discussing “customer or employee information outside of work” or “disclosing details about the [employer]” have been struck down. The NLRB found these provisions to be overly broad, which could lead employees to believe that they are not allowed to discuss the terms or conditions of their employment. On the contrary, one example of a similar rule that the NLRB would find permissible is “no unauthorized disclosure of ‘business secrets’ or other confidential information.”
- Complaining about your boss, coworkers or customers is protected.
- Rules requiring employees to be respectful of their co-workers, supervisors, and the employer are suspect. Again, the NLRB found such rules to be overly broad and noted that employees could reasonably interpret them as banning the protected Section 7 activities of criticizing or protesting employment conditions.
- Being rude to your boss, coworkers or customers is not protected.
- On the other hand, the NLRB stated that provisions regulating employee conduct that did not mention the employer or management may be permissible. For instance, a rule prohibiting “rudeness or unprofessional behavior toward a customer, or anyone in contact with the company” would be considered legal by the NLRB.
- Your harassment/discrimination policies may be out of compliance.
- The NLRB rejected rules regulating conduct between employees, such as those prohibiting employees from sending “unwanted, offensive, or inappropriate emails” or cautioning them against discussing topics that could be “considered objectionable or inflammatory.” The NLRB noted that these provisions did not clarify that Section 7 communications are allowed. However, the Board offered examples of legal rules regulating workplace conduct, such as “no use of racial slurs, derogatory comments, or insults” and “no inappropriate gestures, including visual staring.”
Until President Trump appoints members to fill the two vacant seats on the NLRB—a potentially lengthy process that requires a Senate vote—the Board will likely continue its intense scrutiny of employee handbooks. Therefore, employers should take the following steps to ensure that they remain compliant with federal law:
• Carefully review existing employee handbooks and workplace policies, looking out for any provisions that an employee could possibly construe as restricting Section 7 activities.
• In crafting rules, avoid vague or overly broad language, and remember that it does not matter if an employer does not intend to ban protected activity—the NLRB only considers how employees will interpret rules.
• Keep in mind that even non-union employers are bound by the NLRA. Some employers erroneously believe that they are only required to comply with the NLRA if their workforces include union employees. In reality, the law applies to nearly all private-sector employers.
• When writing policies designed to maintain professionalism and civility in the workplace, make it clear that employees are allowed to discuss wages, working conditions, and other terms of employment.
• Consult with attorneys and other HR experts. HR professionals, such as the team at CBR, stay up to date on the latest NLRB trends and guidelines, and can advise employers on whether certain handbook provisions could be deemed illegal.
Would your organization’s employee handbook withstand the scrutiny of the NLRB? Contact CBR today to find out!